A. Contractual Bases
1. Scope of the terms and conditions
These terms and conditions shall apply to all contractual relationships and pre-contractual negotiations between MedVision and its customers, regardless of the nature and scope of services, in connection with current and future business relations and dealings.

2. Exclusivity
The terms and conditions of MedVision shall apply exclusively. Any terms and conditions of our contracting partners or of third parties will be binding only if MedVision has expressively agreed to them in writing. If you do not agree with this provision, then please immediately inform MedVision hereof. In that case, we must retain the right to revoke our offers without giving rise to any enforceable claims against us. We hereby expressly reject any pre-formulated reference indicating your own terms and conditions.

3. Formation of a contract and written form requirement
On general principle, we enter into a contractual obligation only if the nature and scope of performance and counterperformance have been stipulated in writing by both parties. For this purpose, an electronic and/or written acceptance of the offer submitted by MedVision in accordance with these terms and conditions will also suffice. Any subsequent oral modifications or additions to the offer become effective only after they have been confirmed in writing. The same applies to any and all binding declarations of intent, including any objections, dunning notices [Mahnungen] and formal notices of defect [Mängelrügen], which are made during the course of the contractual relationship.
Both parties may reserve the right to enforce contractual penalties [Vertragsstrafen] only if they do so in writing. This clause may be rescinded by express written agreement only.

B. Supply of Software
4. Licence and scope of the use
In its capacity as the owner of the rights, MedVision grants the customer the non-exclusive right to use the software and documentation material, which is specified in the contract or on the invoice, for an indefinite period of time.
The customer will thereby acquire the right to install on, and use the software with, as many of its workstations, servers and network clients, as it has paid licence fees for. The basis for this calculation is the number of workstation, server and client licences which are listed in the related invoice, including any applicable special agreements (quantity scaling, etc.). Portable computers, which are only temporarily connected to the network, also count as workstations. To ensure that the software may also be used through a terminal server network at additional operational sites (e.g., other doctors' offices, health care centres, limited-care centres, etc.), the acquisition of additional site and client licences for the workstations in those establishments will be necessary.
If the licensed number of simultaneous uses is exceeded, then this will con-stitute a breach of the licence agreements, and an error-free operation cannot be guaranteed in that case.
A contractually-conforming use of MedVision software is defined as: Input or import of instructions or data from a program by way of manual input at a terminal or transfer from a storage unit or a data medium into the agreed hardware for the purpose of processing the data and creating a machine-readable copy for data storage.
Range of application, capability and all other specific program characteristics are stipulated solely in the accompanying manual.

5. Third party intellectual property rights
MedVision agrees to indemnify the customer with respect to any and all claims, which are enforced against the customer in connection with the use of the software and which are based on infringement of copyrights, patents or other intellectual property rights, provided that
• the customer notifies MedVision without undue delay [unverzüglich] about any accusations of infringement,
• the customer does not recognize any such claims as valid without the consent of MedVision,
• the customer authorises MedVision to conduct all negotiations and pro-ceedings and provides MedVision with the necessary support, although all negotiation and litigation costs shall be borne by MedVision.
The foregoing obligations do not apply if the copyright or patent infringement or other impairment of rights is attributable to the fact that the software or parts thereof are used with devices or programs that have not been supplied or approved for combined use by MedVision.
The preceding provisions constitute the entire liability of MedVision concerning the infringement of copyrights, patents or other related intellectual property rights.

In cases involving claims that have already been asserted or are expected on the basis of an infringement of copyrights, patents or other intellectual property rights, MedVision may at its own cost modify or replace the devices or programs in order to prevent such an infringement. The performance of the software system supplied by MedVision may not be diminished by such action.
If the use of the software or any parts thereof is prohibited by a court order, or if, in the opinion of MedVision, there is a risk that a legal action based on an infringement of intellectual property rights will be brought, then to the exclusion of all other customer rights, MedVision may in its discretion and at its expense
• modify the software programs in such a way that they no longer infringe any intellectual property rights;
• procure for the customer the right to continue using the systems;
• replace the software programs in question with other programs that do not infringe any intellectual property rights and that either comply with the customer's requirements or are comparable to the replaced programs;
• take back the programs or parts thereof and refund to the customer the purchase price (pro rata where applicable) less a reasonable amount for use and value loss, lowered by the incurred loss sustained by the customer.

6. Ownership and copyrights
The software entrusted to the customer (including all associated documentation) shall remain the property of MedVision.
MedVision remains the owner of all copyrights and all rights of use associated with the programs that are entrusted to the customer, including the associated documentation, even if the customer combines them with its own programs and/or with programs of a third party. Where such combinations and any copies are indeed made, the customer shall attach an appropriate notice of copyright.
Title to any changes and enhancements to the software code, which are carried out at the request and for the account of the customer, shall pass to MedVision and may be furnished to other customers. The rights of use for the program upgrades are assigned to MedVision. MedVision hereby accepts the assignment. The customer is prohibited from making any changes to the program code.

7. Payments
The customer is obligated to pay a one-time licence fee or a monthly software rental charge to use the software for an indefinite period of time. The sum of the software rental charge or licence fee is calculated in accordance to the current price list (as amended from time to time) and in accordance with any special agreements stipulated in the contract or on the invoice.
Fifty percent (50 %) of the charged services is payable when the contract is signed and the other 50 % will be owed at the time of delivery and formal acceptance. Any other charges that arise from the contract will become due upon delivery. Unless otherwise agreed, the customer shall transfer the payment funds to a MedVision bank account without undue delay.
If the customer is more than 30 days late in making its payment, then MedVision is entitled to charge interest at 5 % above the applicable per annum base rate (default interest).

8. Obligations of the customer
The supplied programs and the documentation materials may not be disclosed, either in whole or in part, to third parties for possible misuse.
The customer may not in any way change any MedVision markings, copyright notices or ownership information.
The customer is obligated to ensure that all programming, documentation and instruction materials as well as any program-specific knowledge are not disclosed. This includes only those documents that were made available to the customer to perform this contract, but it excludes advertising brochures or their content. The customer is obligated to impose upon its employees, and any other person, who gains access to the software through it, the same obligation to maintain confidentiality. This obligation of confidentiality will remain binding beyond the term of the contract, regardless of whether the contract has been terminated prematurely for any reason. The obligation to maintain confidentiality also includes a prohibition to publish any of the materials or excerpts thereof. The obligation to maintain confidentiality can be disregarded only if MedVision's written permission has been first obtained.
The customer agrees to indemnify MedVision for any damages that arise from a breach of the preceding provisions, but those damages are limited to the licence fee in cases of gross negligence unless the damages were caused intentionally.

9. Term of contract and notice period for termination
Under these terms and conditions, the term of the contract is indefinite, but is at least one year.
The notice period for termination for the particular software programs is six weeks to the end of the calendar quarter. Within the termination notice period, notice of termination must be made in writing.
MedVision is entitled to terminate the contract with immediate effect and without prior notice, if the customer fails to perform material contractual duties. Such a failure to perform will be deemed to exist,
a) if the customer is two or more months late in making a payment or the customer falls into arrears one or more times on the payment of a sum equal to two or more months,
b) if a petition to institute insolvency proceedings against the assets of the customer has been filed,
c) if the customer violates its obligations with respect to the software or hardware or damages the software or hardware or creates illegal copies of the software or hardware.
In the event of an immediate termination without notice, the customer must indemnify the full amount of consideration owed for the remainder of the contract, less any expenditures saved.
Within a period of five days after the termination of a licence, the customer shall delete all programs, copies and dispose of any related material, including modified or combined programs, unless they are required by law to be stored. Within a period of 30 days, the customer shall unbidden verify to MedVision in writing that these items have been either deleted or stored as required by law. The customer also grants MedVision the right to check on whether these provisions are being observed.

10. Individual customisation, supply of third-party software
Customised modifications of the standard software or the supply of third-party software of any kind, such as operating system, data base, word processing, data storage or dial-up software, are not subject to MedVision's licenses and maintenance contracts for standard software. If the customer wishes to have modifications made to standard application software or have third party software supplied, then such work must be stipulated in more detailed contracts and will be subject to separate charges.

C. Software Maintenance
11. Maintenance services
MedVision's maintenance services for the program modules listed in the individual contracts or software certificates include:
a) The supply of the current versions (updates) of the software programs listed in the contract, after they have been released, unless they are en-hancements of or supplements to the prior programs, which may be made available as new functionalities by MedVision for a separate fee. At MedVision's option, updates can be delivered either in electronic form ("online") or as tangible data storage media sent by mail. The right of use, as described in section B, will apply to the newest version from the moment the customer is provided with that new version. At the same time, the right of use to the older version expires. Only the current version of the program at any given time will be maintained.
b) The updating of the software documentation, if relevant changes are made to the scope of the functionality or to the handling of the program modules. MedVision is under no obligation to supply completely new documentation materials, but shall supply the revised or enhanced parts of the documentation where the content has been affected. The delivery can also be carried out in an electronic form, as part of an update, which can be viewed on screen or printed out.
c) Changes to and enhancements of the software programs, which are listed in the contract or software certificate and which are required due to amendments to German law or other rules (e.g., certain German healthcare regulations), to the extent that MedVision is capable, from a technical point of view, to carry out those changes on the EDP system used by the customer. This obligation does not include minor modifications or local adjustments of the program that the customer can make itself.
d) Access to the MedVision telephone hotline, provided that the access is related to the maintenance obligations of MedVision stipulated in these terms and conditions.
MedVision shall provide the services as listed above in a) to d) on regular workdays (excluding Saturdays, Sundays and public holidays, applicable to the location of MedVision's headquarters) during the normal business hours (09:00 to 17:00 hours CET).

The contractually prescribed maintenance services of MedVision do not include the following:
a) Access to the hotline outside of the business hours shown above;
b) Maintenance services following an interference by the customer and/or any other third party in the program or the settings of the system, if said interference impedes or complicates the maintenance services;
c) Services related to the start-up, maintenance of operation and/or con-figuration of the program modules that are the subject matter of this contract, on the EDP system of the customer.
d) Services related to the interaction between the subject matter software programs and other software programs which are not the subject matter of this contract;
e) The briefing and/or training of the staff on the use of the entrusted program modules, on the maintenance of EDP systems or peripheral devices, and any other consulting services.
f) Maintenance services for the operating software, third-party software, special connections and/or customised solutions of the customer.
During the term of the licence contract, the costs of all changes or en-hancements to the licensed software modules due to changes of the operating system and standard software and/or computer system enhancements, of any kind and/or regardless of the technical or organisational requirements on which such changes are based, shall be borne by the customer.
The customer may contract with MedVision to supply such services. These services will then be separately agreed, compensated and calculated.
MedVision is entitled to engage third parties to perform all contractual services owed to the customer.

D. Delivery, Formal Acceptance, Warranty, Liability, Confidentiality and Data Protection
12. Delivery, scheduled dates and installation
Delivery dates and schedules are generally non-binding, chronological guidelines, unless they have been prescribed in writing as fixed dates.
As a rule, a standard version of the software slated for delivery will be the one installed. An enhancement or adjustment of the standard software will be made only if a specification has been memorialised in the contract. The installation will be coordinated with the customer. Without undue delay after the contract is concluded, the customer shall provide the name of a contact person in writing.
Without undue delay after the contract is concluded, the customer shall supply MedVision with all information needed for MedVision to determine the current configuration of the hardware/operating system of the customer. Should MedVision determine that the configuration needs to be changed, then all changes must be performed before the installation of the software, at the risk and at expenses of the customer. The customer is obligated to provide any assistance that is needed for the installation of the software. Such assistance includes allowing access to the hardware, providing free test data and machine time which is in line with MedVision's requirements, and gratuitously placing a qualified employee, who can conduct the necessary tests and/or verify the adjustments, at the disposal of Med-Vision.
After the contract is concluded, MedVision shall provide the customer with a copy of the current, generally offered version of the licensed product, in the form of object code stored on a data storage medium that is sent to the delivery address. MedVision reserves the right to adapt the specifications of the licensed product to accord with, for example, technical developments, changes in the law or future market requirements.
A hard copy of the instruction manual will be included in the delivery. It is intended to be used to learn the operation of the program and to answer questions in that context. The instruction manual remains the property of MedVision and it may be used by the customer only for the agreed upon purposes.
If the software or the manual is lost, MedVision will provide a replacement copy at cost.
MedVision warrants only an error-free [einwandfreie] performance of the software on hardware systems that have been approved by MedVision. The approval will be deemed to have been made when MedVision has installed the program on a hardware system of the customer.

13. Formal acceptance
After the installation and testing is completed, MedVision shall notify the customer in writing that the standard software (including any enhanced and/or adjusted software parts) is fully functional and shall request that the client make a formal acceptance [Abnahme].
The customer may then test the software. If the software passes the acceptance test, then the customer shall without undue delay declare its formal acceptance in writing to MedVision within at least 30 days after the notification from MedVision. If no formal acceptance is declared within this time period, then the acceptance will be assumed to have been declared.
For purposes of determining whether the aforementioned 30-day period has been met, the customer's receipt of the written notice will be dispositive. If the customer pays the charged fees without any complaints after the start-up of operation, then such action will be deemed to be a formal acceptance.
The formal acceptance cannot be refused based solely on minor defects [unwesentliche Mängel].
The customer shall take action to ensure that all data protection requirements for using the supplied software at the site of operation have been met. The failure to meet these data protection requirements will not give the customer the right to refuse formal acceptance.

14. Warranty
For a period of 6 months from the delivery date, MedVision warrants that the functionality of the software will essentially match the description set forth in the manual or the documentation. Liability for defined properties and conditions will exist only if they have been agreed upon expressly in writing. MedVision's liability to any customers who are also consumers will not be affected thereby in terms of § 433 (1), part 8, no. 2 of the German Civil Code (BGB).
MedVision specifically notes that under the current state of the technology, it is not possible to create software that is completely error-free.
The customer shall inspect the standard software immediately after delivery and shall without undue delay inform MedVision in writing about obvious faults.
In the event that an error in the software occurs, the customer will be obligated to notify MedVision in writing about the error within two weeks. Within the scope of the written notice of defects, the defect and its form of occurrence need to be described in such detail that an inspection of the defect is possible (e.g., by submitting the error messages) and operating errors can be ruled out (e.g., by listing of the steps taken).
If the notice of defects is justifiable, then the customer shall give MedVision a reasonable grace period to cure the defective contractual performance. The customer shall inform MedVision about the type of curing contractual performance [Nacherfüllung] required (correction of the delivered item or delivery of a new, defect-free [mangelfrei] copy). MedVision is entitled, however, to deny the selected type of curing contractual performance if it can be accomplished only at a disproportionate expense to the customer and if the other type of curing contractual performance has no significant disadvantages for the customer. MedVision may also deny the curing contractual performance if it can be accomplished only at a disproportionate expense to MedVision.
MedVision is entitled to make two attempts at curing contractual performance for one and the same defect or a defect directly related to it within the grace period prescribed by the customer. After a second attempt at curing contractual performance has failed, the customer has the right to rescind the contract or lower the licence fee. The right to rescind a contract or reduce the price may be asserted already after a first failed attempt at curing contractual performance if it would be unreasonable to expect the customer to allow a second attempt at curing contractual performance within the prescribed grace period. If the curing contractual performance has been denied under the conditions described above, then the customer will immediately have the right to reduce the price or rescind the contract.
There is no right to rescind a contract if the defects are minor [unerhebliche Mängel].
MedVision will have the right to install alternate software, if the remedying of the defect is in fact impossible or is unreasonable on economic grounds and such alternative software affords a suitable solution to the problem.
MedVision does not warrant that the software will meet the specified requirements of the customer or that it will work properly with the customer's existing programs and hardware, unless such specified requirements or requests have been agreed upon in writing.
If the customer enforces a warranty claim against MedVision and it turns out that either no defect is found or the defect does not fall under MedVision's warranty, then the customer is liable to reimburse MedVision for any expenses related to such enforced claim to the extent that it acted with intent or in a grossly negligent manner.
Without undue delay following installation, defect remedying work, maintenance work or any other interference by MedVision in the customer's EDP system, the customer shall test the data backup functionality and record the results in writing.

15. Training courses
The relevant knowledge and information needed to use the supplied software will be imparted at training courses conducted by MedVision.
Unless stipulated otherwise in writing, the training courses will be carried out at the customer's training premises.
If the training courses are held at the customer's place of business, then the customer will be obligated to supply free of charge the necessary technical equipment needed for the training course.
Participants of the training courses need to have at least basic skills in using a personal computer.
Costs for overnight accommodation, travel expenses and any other expenses, which are incurred by MedVision and are directly connected with a training course, will be reimbursed by the customer after against verifiable receipts (e.g., receipt of payment).

16. Limitation of liability
Where it has acted with wilful intent [Vorsatz] and gross negligence [grobe Fahrlässigkeit], MedVision will be liable in accordance with the applicable statutory provisions. Where it has acted with simple negligence, MedVision will be held liable only if a material contractual duty [Kardinalspflicht] has been breached or where there has been a delay in contractual performance [Verzug] or contractual performance is objectively impossible [Unmöglichkeit]. In cases of liability for simple negligence, the liability is limited to those damages that are typical or foreseeable. This limitation of liability for cases of simple negligence also applies to cases of initial, objectively impossible contractual performance on the part of MedVision. Liability that is based on the lack of guaranteed characteristics [Fehlen zugesicherter Eigenschaften], fraud, personal injury, defects of title, the provisions under the Product Liability Act (ProdHG) and the German Data Protection Act (BDSG) will continue to exist.
In case of a claim of liability against MedVision, the contributory fault of the customer must be reasonably taken into account, especially in cases involving inadequate error messages or insufficient data protection/backup. Insufficient data protection/backup will be deemed to exist above all if the customer has failed to make appropriate arrangements in the form of state-of-the-art technology combined with adequate measures to protect against outside interference, particularly against computer viruses and other malware which can endanger or compromise single sets of data or the entire data base.
The liability for non-material breaches of contract is limited to two years.

17. Confidentiality, data protection
MedVision and the customer covenant to one another to keep confidential any and all business or trade secrets of the respective other party and not to disclose such matters to any third party or to exploit them in any way. Any documents, drawings or other information that either party receives as a result of the contractual relationship, may be used only for the purposes stipulated in the contract.
The customer is obligated to identify any confidential information by marking it "confidential".

E. Rights upon Termination of Use
18. Return of property
All items of property that have been supplied by MedVision for use must be returned after the contract has ended. The aforementioned applies, above all, to rented or leased hardware. The transportation and insurance costs shall be borne by the customer.

19. Software
After the contract has ended, software supplied under time-limited licences must be returned together with the data media if the media are the property of MedVision; otherwise, the software must be deleted from the data media of the customer and the record of deletion must be delivered to MedVision.

20. Documentation
Any materials relating to the documentation, including information on source code and development, must be returned in their original form (together with any copies thereof).

21. Confirmation of complete return
Upon request, MedVision will be entitled to a formal confirmation that the duties to return the items of property have been fully discharged in accordance with the contract.

F. Ancillary Provisions
22. Choice of law, place of performance and judicial forum
The entirety of our business dealings with our customers shall be governed by, and construed in accordance with, the laws of the Federal Republic of Germany. Where these laws refer to foreign legal systems, the references shall not apply.
Place of performance for the delivery of the goods and services shall be the place that has been stipulated in the contract. If in doubt, the place of performance shall be the registered place of business of MedVision. Place of performance for payments shall be the place specified on the invoice.
Jurisdiction and venue for both parties shall lie with the courts at MedVision's registered place of business. MedVision is entitled, however, to enforce claims in the courts having jurisdiction over our contracting partners.
Statutory provisions shall apply if MedVision's contracting partner is not a merchant who is entered as such in a commercial register [Vollkaufmann].

23. Severability clause
Should any of these terms and conditions be invalid or unenforceable or should the Agreement contain any contractual gaps, then the remaining provisions of the Agreement will not be affected thereby. In this case, the parties will be deemed to have replaced the invalid, incomplete or unenforceable provision with an enforceable provision that most closely reflects in a lawful manner the economic purpose of the invalid, incomplete or unenforceable provision.